Thursday, June 09, 2011

Prosecutors 'try to' keep it simple for Blagojevich jury

Last year, critics complained that the case against former Gov. Rod Blagojevich was too complicated. Jurors got lost in the legalistic thicket of 24 mostly interlocking counts and ended up being unable to reach a unanimous conclusion on 23 of them

So for the Blagojevich retrial, government prosecutors streamlined the case and reduced its essential question to 17 words:

Did the defendant try to get a personal benefit for himself in exchange for an official act?

Assistant U.S. Attorney Carrie Hamilton sounded that theme repeatedly during her meticulous closing argument Wednesday afternoon and Thursday morning, reminding jurors that the key to the case against Blagojevich lies in the word "try."

We all know he didn't succeed. All his scheming conversations with subordinates and family members about how he might leverage his executive power to get a new job or hefty campaign donations came to naught. Some collapsed of their own ridiculous weight. Others were cut short by Blagojevich's arrest in December 2008 and never came to fruition.

"Rod didn't get a dime," thundered defense attorney Aaron Goldstein in his rebuttal, as though the government had argued otherwise. "This case is about nothing."

As one who's been devoting quite a bit of time lately to sparring online with defenders of Blagojevich, I can attest that this is a popular sentiment among them: The former governor is a chatterbox who thinks out loud, vents unattractively and gives voice to politically unwholesome thoughts. But having a greedy, hypocritical soul isn't a crime.

"He likes to talk," Goldstein argued. "(Prosecutors) want you to believe this talk is a crime. It's not."

Jurors will make that decision in the coming days, of course.

But generally speaking, talk — even talk that leads to nothing — can be a crime.

To be clear, it's not against the law to jibber-jabber speculatively with your confidants about some illegal or unethical act you might commit. Saying, "Hey, what if we robbed that bank on the corner and used the money to start a meth lab?" is OK under the law.

Thoughts — even loopy, evil thoughts — are free in this country.

It's when you begin to turn these thoughts into action — "Hey, here's money, go buy me a gun so we can rob that bank on the corner...." — that you cross the line.

And it's when Blagojevich attempted to communicate offers though back channels to trade official acts for his personal benefit that prosecutors say he crossed the line.

Some of you don't think that's fair. The alleged dirty deals never went through and in some cases didn't even get passed up the line to those who could have consummated them.

Some of you think the proper question here contains just 15 words:

Did the defendant get a personal benefit for himself in exchange for an official act?

Because the answer to that question is: "No." Blagojevich claimed no victims and reaped no rewards. No harm, no foul.

But the law includes those two problematic words "try to."

Did the defendant try to get a personal benefit for himself in exchange for an official act?

Because the law thinks that trying to commit a crime — taking actions that further illegal plots — is itself a dangerous, socially corrosive act that can't be tolerated. The law recognizes that every completed crime begins as a sinister impulse, and the sooner in the process we can blunt that impulse, the less likely we'll be to have actual victims.

There can be no question that Blagojevich wanted to realize personal benefits in exchange for official acts. The hunger in his voice is palpable.

The only question for the jurors is whether the evidence supports the idea that he tried to realize those benefits — in which case they must find him guilty — or if the evidence suggests he never moved beyond just musing about it — in which case they must find him not guilty.

What's at stake is the ideal that prosecutor Hamilton expressed in a quotation she offered at the conclusion of her argument:

"Government is supposed to exist for the good of the people, not the other way around, and certainly not for the personal enrichment of those who hold public office."

Who said it? It was Rod Blagojevich, commenting in April 2006, after the conviction of his predecessor, George Ryan.

Comments

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It's not accurate to say those 17 words encompass "the law" in a 20-count federal case with numerous intangibles to consider. That's what the prosecution asserted in closing arguments and it's presented here too as "the law," but it's not nearly so simple.

The jury also receives detailed instructions on the law. These instructions can be confusing legalese, but I believe jurors take them seriously, and 12 minds working as one are capable of a lot. I don't believe Ms. Hamilton has misstated the law, and if she has, a jury faithfully discharging its duties will catch it. Ms. Hamilton by the way is an outstanding attorney and prosecutor.

Trying is one thing, instigating others to carry out your plans, while trying to extort your hoped-for marks, is another. He wasn't just talking here.

In our schools, we give out 3-5 day suspensions for those who extort, rob, or beat up other students. For a student who singles out others for robbery or violence, trying to encourage friends to carry out these acts, the punishment is just as severe. It does not matter if the action is not carried out, the student 'talking' about these attempts is instigating, minimum five-day suspension.

"or if the evidence suggests he never moved beyond just musing about it — in which case they must find him not guilty."

That is crystal clear. He gained nothing. He furthered nothing beyond pondering with counsel, staff, and spouse. This whole thing is about nothing.

In Illinois, if you're a low lying politician or a high profile politician who has angered the ruling class, you are prime target for this beefed up Northern District of Illinois Fed operation to meet their quota.

ZORN REPLY -- Get the idea that he gained nothing out of you head, Tim, as it distorts what you seem to think is a sound legal analysis. Doesn't matter that he gained nothing.
When you say he "furthered nothing.." that suggests that you don't know that he in fact asked/ordered his underlings to DO things to explore these deals.
I hoped the above column explained this pretty well.
Saying, "Well, we could always rob a bank..." is legal musing.
Saying "Well, we could always rob a bank, so, Bob, here's $500, go buy me a gun..." is a crime. Right then. Before any bank is robbed.
Do you not understand this? Do you not see how this applies to Blagojevich?

Zorn may be right. I may be right. Neither one of us wants to do A DIENNE where she emphatically and repeatedly claimed that the accusations against Weiner were a hoax and a set up. Thus to avoid the egg on face we both acknowledge uncertainty regarding our predictions.

Zorn was extraordinarily prescient in predicting that the prosecutors would use the cop and motorists analogy. I was extraordinary prescient by predicting the form of the defense closing:

On Tuesday June 7 I posted:

[I would counter Zorn’s cop analogy as follows – and this is most important –
There is a bright line as to bribing the cop in the Zorn hypothetical.

In the political arena –on the other hand – things are very very fuzzy. Constituents ask for special legislation all the time – farm subsidies, ObamaCare, a veto of the defunding of Planned Parenthood, funding for Public Radio.

Politicians often do what their constituents ask. Thereafter they ask for constituent support in the way of campaign contributions, going door to door, or working the phones. That is perfectly legal as long as IT IS DONE LEGALLY – NO QUID PRO QUO – there has to be a separation between the politician doing something for the constituent and the constituent supporting the politician.

Blago has consistently shown that he played hardball politics but that he also wanted to keep things legal. He consistently has shown he wanted to keep the separation as to what he was doing and thereafter asking for political support. Of course being a doofus – Blago as client had a fool for a lawyer.

In this regard I ask is Hastert alleging an illegal action be suggesting that Blago do a personal favor for Old Man Madigan – appointing his daughter to the Senate –in exchange for a “quid pro quo?” And note in this instance “quid pro quo” were Hastert’s words.

It usually takes two to tango. Why weren’t the other side of the deals indicted? Or I ask rhetorically – were their actions customary political practice.]

In my opinion the Prosecutors made a grievous mistake in not addressing this point in the first instance. It makes them look unfair in the eyes of the jury. It gives the impression that they did not address it in the first instance because they could not address it. After all there is a jury instruction on this point. Thus they have provided the defense with the coat peg on which to hang REASONABLE DOUBT.

ZORN REPLY -- "He consistently has shown he wanted to keep the separation as to what he was doing and thereafter asking for political support." ????

Which Blagojevich transcripts have YOU been reading?

Are you really a lawyer, JerryB? Because the question "Why weren’t the other side of the deals indicted?" is like asking "Why wasn't the cop indicted when the motorist extended a $100 bill to him?"
Those who did advance the deals have, for the most part, pleaded out. There may be a few still to come, I don't know, but above and beyond that, it's a totally irrelevant question for a juror to ask himself.
By the way, I make no claims for extraordinary prescience for coming up with a pretty obvious analogy, nor should you make such a claim for coming up with a pretty obvious counter-argument.
One reason I had the motorist offer the bribe in my analogy rather than have the cop demand the bribe as in the government's analogy is that I wanted to stay away from that fuzzy line of when and how it's OK to ask for money. THough the answer is, it's OK for a cop to come door to door asking for donations to the PAL; it's not OK to ask for donations or money of any sort when the circumstances clearly suggest the squeeze.

---I also believe that the defense and Blago did a brilliant job by sticking to a few themes and doing everything at all times to support those themes.

I believe the Prosecutors did an extraordinary inept job. First there is the matter of ignoring the jury instruction which was the foundation of the defense’s closing. This was discussed in the prior post.

Then there are the matters that I discussed on Tuesday, June 7:

[1) The Feds have to offer a logical and coherent explanation. Blago just has to create reasonable doubt. Those are the legal burdens at a criminal trial.

2) It is the consensus of Marin, Bracket, and JerryB that the mean prosecutor vs. the doofus Blago on the first day of cross – was a mistake by the Feds.

3) If it comes to a stand-off between the mean prosecutor vs. the doofus Blago – Blago wins since juries have sympathy for the criminal defendant who takes the stand.

4) The Federal Prosecutor starts out with an immense advantage in that he works for JUSTICE and he represents us. The Feds have sundered this advantage by
• Starting out too mean;
• By not allowing Blago to give his full answers. (There is a sophisticated way to handle this.)
• By merely trying to besmirch Blago with tangential stuff. Examples: – his working from home—lying as part of politics as if other politicians don’t.]

Thus if the Prosecutors do not obtain convictions. If the jury is again hung. Then the prosecutors are to blame as they were blamed in the first trial.

--First, Eric, I have to protest JerryB's 8:00 AM comment as a violation of your terms. Besides the obvious fact that it is entirely off-topic, it is rather a direct personal attack, especially obnoxious since I hadn't weighed in on this thread yet. Nothing like being talked about behind one's back.

Second, as to the accusation itself, it is patently false. I never said, whether emphatically or otherwise, that Weiner was for sure innocent or that it was for sure a set up. What I said - and still say - is that the circumstances are awfully suspicious. The Tweet occurred around 11:30 p.m. on a Friday night and was deleted within minutes, yet this "usapatriot" stalker guy (who'd been posting about an upcoming Weiner sex scandal for nearly a month) managed to get a dubious "screenshot" of it. Rather suspicious, that.

I also said - and still say - that Weiner's behavior after the incident was irrelevant as it neither proves nor disproves that anything happened. There is no way that he could have acted which wouldn't have been twisted into his being guilty.

And I also said - and still say - that if Weiner were Republican, this never would have been covered for two solid weeks the way it has been. The very people making such an issue out of it now would be outraged that it was even brought up in the first place.

And finally, I also said - and still say - that with three wars bankrupting us and 10% unemployment and wages stagnating and foreclosures increasing and home values decreasing and environmental issues out the wazoo and the whole damn country basically going to hell in a handbasket, Weiner's weiner should be an utter non-issue for everyone other than Weiner's wife.

But what I didn't say but should have, is that my defense of Weiner should in no way be construed as knee-jerk support for Weiner personally or politically. While I like some of the stands he has taken on certain issues, overall he is far too knee-jerk supportive of Israel for my tastes. My defense of him was, as Glenn Greenwald put it, about the principle, not the person. http://www.salon.com/news/opinion/glenn_greenwald/2011/06/07/weiner/index.html

ZORN REPLY -- I apologize for not monitoring this thread closely enough this morning. The Weiner thing is off topic. I think it was appropriate to view this allegation skeptically at first due to the odd qualities it had that you noted. I'm not interested enough in this particular spat between you and JerryB to go back and review the transcript for quotations, but perhaps this topic deserves its own thread.... I'll start one.

My answer: As much a lawyer as the one who gave the defense closing. He made the same points.

He said that Blago got nothing in return. [Rod didn’t get a dime,” Aaron Goldstein said. “I told you (that) you would hear the sound and the fury. In the end you would get nothing…The man didn’t intend to do anything they’re saying. And that is what this case is about.]

You would think that a cop who consistently solicited bribes would get a few fish to bite. This lack of biting fish is called circumstantial evidence.

If the defense closing was improper they judge would have instructed the jury as such.

ZORN REPLY -- I don't think it's improper, I just think it's legally irrelevant, playing on the jury's emotions...kinda like bringing his family to court and so on.

To go back to my murder-for-hire example, a defense attorney could argue, in closing, "no one was ever hurt. No shots were ever fired," and it would be up to people of sound legal mind to say, "uh, yeah, but the defendant isn't CHARGED with hurting someone. So what."

I haven't completely read either of your posts, but I would recommend that you find an opportunity to meet (safely) face to face. Maybe Eric could arrange it.

The idea that 2 people that have never met can pursue an ongoing semi-anonymous verbal fight like this, just depresses me. It would great for this blog to remain a haven from the dirth of general courtousy that exists in other internet corners.

What I find interesting about these discussions is that no one (for the most part) has any idea what the other commenters look like. We just have to rely on our imaginations.

And another very good column, Eric. The idea that Blagojevich "gained nothing" is a canard; an attempt at obfuscation by Blagojevich's reflexive defenders. It's pretty elementary that taking steps in furtherance of a crime, including talk, *can* constitute a crime.

While there are certainly legal arguments to be made for Blagojevich, his apologists, whatever their motives, are not arguing honestly. They're trying to put it "in the air" (as Vince Bugliosi put it in his book about the OJ trial) that this is an unfair prosecution, a persecution, that his actions could not constitute a crime under any circumstances, etc.). It's a con, but at least on this comment board, relatively few are buying it.

ZORN REPLIED: "Saying "Well, we could always rob a bank, so, Bob, here's $500, go buy me a gun..." is a crime. Right then. Before any bank is robbed.
Do you not understand this? Do you not see how this applies to Blagojevich?

EZ, let your heart not be troubled my friend. I do understand the hypothetical you so eloquently presented. Let's be clear, I comprehend it. But your proposed scenario does not parallel to the facts of the Blagojevich trial. Therefore, I do "not see how this applies to Blagojevich."

Again, it is not illegal for politician's to seek campaign contributions to their political funds. It is not illegal to discuss doing political favors for people in return for political favors. So first off, there wasn't even a crime being discussed. Secondly, there wasn't any attempt to take action or as you say "Bob, here's $500, go buy me a gun."

You can't just say that he told people to ask for a campaign contribution from an entity that had business before the state and therefore it is a crime. In fact, in some of those recordings, the former Governor is clear to emphasize not to link one for the other. In other conversations, he's been presented as to what the POTUS wants. So in return, he expresses what he would want. No harm there. A political appointment by the POTUS is not a crime even if it happens because of a political favor done for the POTUS. He may have been less than diplomatic in his language, but he was no fool. These are things that were being presented to him because of this awesome authority he had with regard to the U.S. Senate seat.

He was wildly unpopular politically. And the real powers that be did not want to respect the power he had in accordance with the law. It wasn't his fault that the law gave him that authority. Naturally, he and counsel were trying to leverage it for political gain....be it Madigan allowing the Governor's agenda to move in Springfield or the President giving him a plum appointment so he can get out of the gridlock that was going on in Springfield.

ZORN REPLY -- I dunno, how much have you actually read about the case, Tim? How many of the transcripts have you seen? Because the overture to Balanoff -- give me a cabinet post and I'll give you Valerie Jarrett as a senator -- is quite clear and, to my mind, quite corrupt. That's in no way a political deal. It's a personal deal. It's not about what's good for Illinois, it's about what's good for Rod Blagojevich.
Trading the senate seat for the advancement of a bill in Springfield is, arguably, a political deal if such a trade were ever advanced. indeed Mike and Lisa Madigan would quite possibly be subject to legal sanctions.
Any time Blago directed someone to explore possible corrupt deals, he was committing a crime. I know you don't like that. I know it seems harsh. I know it's not even proportional. But that's the law. If the jurors follow it, Rod is cooked.

“Thus if the Prosecutors do not obtain convictions. If the jury is again hung. Then the prosecutors are to blame as they were blamed in the first trial.”

For the most part, yes JerryB, I agree with that. However--there's always the chance of a holdout juror, like last time. My armchair legal QB'ing is that the prosecution last trial overcomplicated their case for little if any benefit (as the OJ Simpson prosecution did).

But yeah, if the prosecutors don't get him, then that's primarily on them; and they'd probably agree. In both trials it appears the defense is based more on theatrics that substance, in contrast with the prosecution's case, which tells me something.

What's different here is Blagojevich testified, and was caught in numerous lies during the process. Why make up lies if you hadn't believed you'd done anything wrong? The defense's answer to this, everyone else is lying? They should have stuck to the argument the prosecution didn't make their case. Defending Blagojevich as truthful takes a lot of the power away from their message.

I'm not a regular reader of Rich Miller but he makes the case I'd make, much better than I can, and exposes the attempted "con" of many Blagojevich apologists and sycophants (who appear to be defending him not on principle, but because they like him personally).

Rich Miller:
"Mind you, Rod wasn’t saying that he wanted to extract a bribe in exchange for appointing various people to fill Barack Obama’s vacant U.S. Senate seat. He was just tossing around ideas. He didn’t really mean it. ...

"Rod didn’t really want a bunch of billionaires to pony up cash to fund a nonprofit group in exchange for appointing Valerie Jarrett to the Senate seat. He was just talking about it. And the fact that he stopped talking about the scheme after Jarrett withdrew her name means nothing. He just has attention deficit disorder or something. He quickly moved along, and so should we. There’s really nothing to see here."

This particular defense is a con. Those who buy it are either willing to perpetuate it, or being duped.

> In both trials it appears the defense is based more on theatrics that substance, in contrast with the prosecution's case, which tells me something.

The federal rules of evidence are prejudiced against the defendant, according to Joseph Gomez, a defense attorney interviewed on WTTW last week. The prosecution has great latitude to enter evidence into court while the defense can barely get any evidence admitted. Judge Zagel remained tight on this issue despite his constant refrain to the defense during the prosecution's side of the case, essentially prodding the governor to take the stand to get defense tapes and other evidence admitted. How is it even possible that a federal jury is supposed to determine a person's true intent based on isolated, heavily edited, cherry-picked excerpts out of 5000+ wiretapped calls when other excupatory calls from the same timeframe are suppressed? Quite a bit of the evidence in this case is under seal, including 98 percent of the calls. I hope one day we will see the true picture. I hope that the 12 intelligent, independent open-minded jurors can see through the sound and fury of the prosecution's case, which ultimately signifies nothing. No crimes, no victims, nothing. This case has been a very disheartening and revealing eye-opener to me about our heavy-handed and politically motivated federal justice system. Never thought it could happen in the United States with our Constitutional protections, including due process.

It seems to me that the prosecution is trying to prove intent prior to the alleged crime, which seems to be a difficult sell for a jury, and here’s why. The prosecution’s only real tangible evidence seems to be the wiretapped phone conversations, so the jurors are forced to make certain assumptions about what occurred outside of these phone calls (i.e. do these calls stand alone or should they be taken in a greater context? And if so, that context has not been tangibly presented by the prosecution). They have to make the assumption that these conversations were indeed something more than the spit-balling of ideas and that they indeed form the basis of intent to commit a crime. I think there will be at least some jurors that will not be able to see this intent beyond a reasonable doubt, and therefore will be unable to find Blago guilty.

For instance, on the charge of trading a cabinet position for a Jarrett Senate appointment, EZ brings up the argument, “give me a cabinet post and I'll give you Valerie Jarrett as a senator -- is quite clear and, to my mind, quite corrupt. That's in no way a political deal. It's a personal deal. It's not about what's good for Illinois, it's about what's good for Rod Blagojevich.” I can understand this argument, but I can also see the other side that says, at least in the egomaniacal mind of Blago, that his appt to HHS would not only be good for Illinois, but for the whole country… after all, he did truly believe he was the #1 pro-healthcare Governor… and all it takes is one juror to see this as casting “reasonable doubt” on the prosecution’s claim that he was working for only his own self-interest.

And let’s face it, even though jurors are supposed to consider only the facts presented at trial, each one of them brings their own biases to the table and it is nearly impossible for them all to couch those biases. We’ve all seen ‘Twelve Angry Men’… do you think there is a Juror #8 (Henry Fonda’s character) on this jury to challenge those biases and preconceptions and force the other jurors to consider the case on its face?

I’ll stand by my 0-20 prediction, and I think it will again be the prosecution’s fault for not presenting a clear case that removes any reasonable doubt. And just to be clear, I in no way support Blago and I think he is nothing more than a dirty, corrupt, lying politician with an inflated ego and little moral backbone, but this is the way I’ve read the case and how I think it will play out.

ZORN REPLY -- You sound like Blago, asking for other tapes to show a different context. The only context that would remove the obvious implication from the tapes we heard would be a recording saying, "You know earlier when we were play acting what a corrupt governor would say? That was pretty funny, wasn't it." Otherwise, no, that's a desperate argument. It's like saying, "sure the surveillance tape shows my client waving a gun around int he bank, but it doesn't show all the times he walked into that bank and DIDN'T wave around a gun."
There's agreement, near as I can tell, among those who were actually in court that the government did a very good, much better, job this time.

> exposes the attempted "con" of many Blagojevich apologists and sycophants (who appear to be defending him not on principle, but because they like him personally).

That's nonsense, Kip. Most of his defenders online throw in a disclaimer that they do not like him personally and/or as a politician but defend his right to due process and a fair trial. The Blagojevich defenders were not swept up in the tsunami of condemnation unethically lodged against him on Dec. 9, 2008.

Steve Chapman had a great column yesterday about the John Edwards case. Many of the same principles could be applied to this case as well:

ZORN REPLIED: " Because the overture to Balanoff -- give me a cabinet post and I'll give you Valerie Jarrett as a senator -- is quite clear and, to my mind, quite corrupt. That's in no way a political deal. It's a personal deal. It's not about what's good for Illinois, it's about what's good for Rod Blagojevich."

Balanoff came to him with the suggestion. Is appointing Ms. Jarrett a personal deal to the President-elect? Or was it a political deal for the President-elect? Would appointing Valerie Jarrett be good for Illinois, President-elect Obama, or Governor Blagojevich?

Eric, I am sensing you are setting up a jury nullification argument for this verdict if it does not go your way (20-0). It's not fair and it works both ways. After the last trial, one juror who had voted to convict Robert Blagojevich then changed his stance after the charges were dropped, seeming to indicate he voted to convict even against his own belief that Robert had no intent to commit crimes.

The Judge should not have allowed Tom Balanoff to testify without turning over the Fitzgerald/Obama 302's to the defense...It was improper for him to determine that there was 'nothing there', that should have been left up to the defense to determine...

> There's agreement, near as I can tell, among those who were actually in court that the government did a very good, much better, job this time.

That's one reason that I do not understand the angst over the standout juror in the last trial. The news coverage throughout the trial panned the prosecutors' case as passionless and meandering and full of irrelevant bangles and beads. After the government's case concluded, the defense rested. It was not a very good case and there was plenty of room for reasonable doubt. So why would a split verdict on 23 counts surprise anyone? And the standout juror did vote guilty on the perjury charge, which is consistent with Susan Berger's prediction (before the verdict) that there was only one clear-cut conviction: the same perjury charge.

I find it amazing that the defenders of Blago are completely incapable of defending him on the basis of the facts and the law. They make statements like "that's not a crime" or "he's just talking" or "no one was hurt". But each time they post their comments they do nothing other than further illustrate their ignorance of the law and ability to accept the facts presented at trial.

You really can't say that a crime wasn't committed if you don't know what the legal definition fo that crime is. If you want your comments to be taken seriously, acknowledge what the law requires for a guilty verdict and how the defendants conduct doesn't rise to this level. I understand that you may have empathy for the defendant and you may disagree with the law but that doesn't mean he's not guilty. From where I sit it sure looks like the prosecution has done a good job of describing what the law is and how the defendant broke it.

Clearly, the argument Blagojevich and his knee-jerk defenders would have the rest of us accept is that he didn't mean anything he said on the tapes that reflects badly on him. That is, nothing the former governor said or says should be taken literally; or, taken logically one step further, we shouldn't believe anything he says.

I find it amazing that the prosecution has summarized its own complex 20-count case (adding up to 350 years in prison) into 17 words and called it "the law." If the case was so simple, why are there so many analogies trying to explain it?

"So where is our outrage over the way judges and lawyers now are often able to go back in time and retrospectively listen in on our e-mail and text exchanges? These exchanges are often as loose and unguarded as actual spoken conversations -- sloppy, blunt, intimate, haphazard -- but because they usually end up living on some disk or server somewhere whether we want them to or not, the courts, with a little effort, can go back and, in effect, eavesdrop."

If you horse-trade to get yourself a plum appointment, that's corruption. If you horse-trade to get your wife a job, that's corruption. If you horse-trade with the expectation of a donation, that's corruption. Clearly.

And the law says trying to get that plum appointment, or your wife a job, or that huge donation, is just as bad as actually getting it.

I don't understand how so many people don't seem to get this basic premise.

Now, we can argue if the prosecution made a good case. Did they make it clear that Blagojevich tried to get that plum appointment, or that illegal donation? Whether he got it or not?

It seems clear to me that he himself, personally, made that effort. He used his friends and family often as go-betweens, but he's ultimately responsible.

I guess everyone has a right to send emissaries to suggest this or propose that, but the Governor only has the right to shut up and take it. He can't even talk about this major appointment with his advisers in terms of 1) who should he appoint and 2) what's in it for himself or his agenda. Yes, getting something for himself politically is part of the political process. And for all the appointment talk for himself landing a gig in D.C., those same tapes also talk about legislation for the people when it came to the Lisa Madigan proposition that most want to just write off.

ZORN REPLY -- "getting something for himself politically is part of the political process." Well, that depends on what that "something" is, doesn't it? And a new job simply doesn't qualify.

“Did the defendant try to get a personal benefit for himself in exchange for an official act?”

Now let me qualify this and say I don’t necessarily believe this, but allow me to play Devil’s advocate for a moment. There may be another way of looking at this for some jurors, at least on the charges of the alleged campaign contributions. One could argue that Blago did not try to get a personal benefit from his official act, but rather a benefit for his political campaign, which is an independent entity in and of itself (liken it to a corporation here), and that any benefit the political campaign received would ultimately benefit the citizens of Illinois because it would help ensure that “the good governor” (I use that term as loosely and mockingly as possible) could get re-elected and therefore he could continue to provide all the great things to Illinoisans that he has claimed. So yes, he may have tried to get a campaign contribution, but only so he could continue to do his work in the best interest of the citizenry of the State.

Again, I don’t see it that way, but it only takes one juror to have a similar perspective in order to prevent a Guilty verdict on those charges. And if the prosecution is relying on those seventeen words they better be damn sure that all twelve jurors will answer “yes”, and I’m not sure they did enough to convince the jury that he did without relying on certain assumptions regarding what occurred outside the wiretaps that were admitted as evidence (i.e. there is still reasonable doubt for some).

ZORN REPLY -- Blago tried to make that point, but it falls apart when you look at it practically. If your mayor were to come to you, Bruce, and say, "Either you donate $1,000 to my campaign or I'm going to send building inspectors crawling all over your property," does it matter in the least that one might argue this is not a personal but a "political" benefit to the mayor? Is it, in fact, even material? WOuld you, the victim of this squeeze, feel any LESS squeezed by the fact that the money is going to a campaign warchest rather than the the mayor's personal account?

The majority of the anti-Fed posters (for lack of a better term) are as anti-Blago as you.

That includes me – a moderate conservative – who says Blago is a piece of crap.
Jara – a liberal attorney – who says Blago is scum. Bruce L above says ”I think he is nothing more than a dirty, corrupt, lying politician with an inflated ego and little moral backbone.” Bruce L. describes himself as a centrist just slightly left of center.

We are not knee-jerk anything.

And it is a cheap shot to say Bruce L “Sounds like Blago.” Zorn once posted that he thought some of the restrictions imposed on convicted sex offenders were too harsh for those offenders who committed only RELATIVELY minor offenses. It would be a cheap shot for me to say “that is the sort of argument a convicted pervert would make.”

"You sound like Blago, asking for other tapes to show a different context."

I'm not saying that if I were on the jury that is what I would be using to support and base my decision on; I'm merely saying that I believe this is what will occur with at least some of the jurors in this case. I think some jurors will believe the assumptions that they are being asked to make regarding the context of the evidence are simply too much for them to find Blago guilty beyond a reasonable doubt; thus my prediction of a hung jury.

Again, I'm not advocating on behalf the defense here; I think Blago is an absolute schmuck! I'm merely analyzing what I have seen of the case and attempting to predict what may or may not happen in jury deliberations. From what I've seen, I don't think the prosecution did enough to remove all reasonable doubt in the minds of all twelve jurors; that's all. Meanwhile, you seem to think that the prosecution has done enough to prove the charges, which is fine too and great if the jury convicts him.

But right now it is not up to either of us... it is entirely in the hands of twelve independent jurors and will be based on their interpretation of the evidence presented and the their ability to follow the judge's instructions and leave all biases out of their decision making process. You seem to think they are capable of doing this; whereas I am more cynical and don't truly believe all twelve jurors will be able to.

Tim H. - I think you just proved my point. Nowhere in your nonsensical post do you acknowledge what the law requires to prove Blago guilty. Nor do you offer any logical explanation of why his actions are all acceptable under the law (and everybody does it doesn't count).

We aren't talking about "what everybody else does" were talking about what this governor did. If you want to be taken seriously focus on what the facts of this case are and what the law requires for a guilty verdict. Was it legal or not? If you believe that he shouldn't be convicted based on the facts and the law tell me why.

Dave - I think that people are providing analogies with the misguided hope that they can convince you of Blago's guilt with reason and logic. I've read enough of your posts to know how futile that is.

---The prosecutors presented an inaccurate police officer analogy to the jury in both opening and closing arguments. As the defense pointed out, a police officer is never allowed to ask for money. A politician asking for money is legal; they do it every day. Donald Trump says that Weiner called him all the time asking for money:

ZORN REPLY -- Every analogy has flaws. Truth is, anyone can ask anyone else for money at certain times and under certain circumstances. And it's those circumstances that need to be examined.
A man could come up on your porch with five tough guys standing behind him and say "I'm collecting money for a little fund I'm starting, and me and the boys here would like a little donation. By the way, this is a nice little house you have here and it sure would be a shame if anything happened to it, wouldn't it?" No direct threat, even, if you parse words like Blago, an expression of caring and concern. But the circumstances suggest extortion.
Far different than if a lone man came to your porch with a clipboard and said, "I'm from Greenpeace raising money to save the whales. And my, don't you have a lovely house?"
At least in my world.. In Dave's World, one just can't tell what's going on, can one?
That's why analogies help. They don't prove up a weakness in an argument -- otherwise, of course, Goldstein's use of a contrary analogy would show the weakness in his hand.

---Dave - Most jurors when polled say that opening statements and closing arguments have little influence in arriving at a verdict. So the debate is somewhat pointless. If the jury had to decide who used the better analogies in closing, there might be hope for Blago. However, I believe the last governor in this state who asked for money is sitting in jail.

Like any trial this comes down to the facts and the law. Whether we like the verdict or not, I trust that the jury will uphold their duty.

--Ronnie Bats posted: "Tim H. - I think you just proved my point. Nowhere in your nonsensical post do you acknowledge what the law requires to prove Blago guilty. Nor do you offer any logical explanation of why his actions are all acceptable under the law (and everybody does it doesn't count)."

Ronnie Bats, I've posted several comments or "nonsensical posts" on this subject. I don't recall you ever acknowledging any one fact that I might of accidentally stated. So I refer you to my previous posts on this topic. I think you'd be educated and find some refreshing dry humor.

I don't profess to know every detail of this case. As a matter of fact, all of my information comes from media sources (television, newspaper, internet). Therefore, I am quite limited. Also, media content is often times incorrect, biased, misleading, and/or lacking of context. That's an inherent nature of that business. Nevertheless, it is the major source of information. Based on that truth, I have to interpret or read between the lines to make sense of things based on my own knowledge of the situation, limited common sense, scintilla of intellect, and personal life experiences.

Rod Blagojevich was the Governor of the State of Illinois when he was arrested at approximately 6:30 a.m. in his home in order to stop a "crime spree". One of the most talked about charges, and apparently the strongest allegation is his alleged attempt to "sell" the former U.S. Seat of President Barack Obama. The allegation is based on the fact that the FBI recorded telepone conversations between Mr. Blagojeivich and his inner circle. In those conversations, Mayor Emanuel and Congressman Jackson are mentioned as individuals who want to influence the Governor's decision. The ponders with his staff as to what are these individuals offering to him. Yes, the Governor is seeking some sort of exhcange in return for his action. The feds want you and everyone to believe that a law has been broken because he is talking about getting something in exchange for giving something with his family, staff, and counsel. Yet, the feds don't want you to hear conversations that they recorded that provide context to the situation. Even further, Emanuel and Jackson, testified that no one asked them ("furtherance"; since that's the anti-Blago crowds sticking point) for anything. Again, Emanuel and Jackson, said that no one asked them for anything. They said it under oath. But you probably are stuck on Jackson's Elvis impersonation which has nothing to do with the charges in this case.

ZORN REPLY -- You write that "Emanuel and Jackson, testified that no one asked them ("furtherance"; since that's the anti-Blago crowds sticking point)" -- but that's not what furtherance means, Tim. How many times do I have to remind you. Telling Robert to set up a meeting with JJJ's bribe-offerers was an act in furtherance...the fact that he called it off when he realized he was being taped suggests only that he wasn't insane. Even if JJJ never knew of the bribe offer as he says, it's still an act in furtherance.
To put it another way, just because there's no actual hit man, sending someone off to meet with a hit man to discuss how to bump off your worst enemy is still a crime.
Got it?

Tim H. - A simple "I've never bothered to read the indictment" would have sufficed.

If you're interested, here's a link to the government's outline of evidence or proffer as its legally known. I realize that the 91 pages might be a little overwhelming since you typically rely on soundbites, but all you really need to know is provided in a summary on page 2.

To Wendy: ZORN REPLY -- My sense is that they felt they got their pound of flesh out of Robert, that he'd paid enough for having stumbled into his brother's madness.

No, actually the government tried to keep Robert in legal jeopardy for another year by offering him a severance the day before they dropped his charges. He refused their offer and was prepared to be retried with his brother. The govt knew Robert helped his brother greatly during the first trial. They interviewed several jurors who said Robert would never be convicted. So, the govt dropped charges against Robert to help their weak case against Rod.

"To put it another way, just because there's no actual hit man, sending someone off to meet with a hit man to discuss how to bump off your worst enemy is still a crime."

Those who can't or won't accept this relatively simple truth (I remember it clearly from my first year of law school) show again that they are defending Blagojevich because they support him *personally.* The support is unwavering and no doubt genuine, but the more rational among us realize this is an attempt to distract from--rather than address--the well-grounded legal charges against him.

That's why you see the arm-waving irrelevancies and pejoratives thrown in there ... "sitting governor" ... "arrested in his home at 6:30 a.m." etc. Stuff that is meaningless in the context of the crimes he is charged with.

They've lost the argument; they just can't admit it. And all that effort, in the service of the likes of Rod Blagojevich, would-be con-man, blowhard, buffoon, incompetent, criminal. Sad.

@Ronnie Bats: "If you're interested, here's a link to the government's outline of evidence or proffer as its legally known. I realize that the 91 pages might be a little overwhelming since you typically rely on soundbites, but all you really need to know is provided in a summary on page 2."

Again, Ronnie Bats has spoken! Oh I apologize, I get it now.....all one has to do is read the government's allegation and the case is closed. Why bother would this trial stuff, right?

EZ, enough with the analogies. If I tell you to ask John Kass to punch Mark
Brown in the stomach, then I've committed assault and battery. I don't think so!

I'd be curious to know how many supporters for the defense have ever sat on a jury? So much of what you're describing has nothing to do with what the jury will be deliberating. The jury's perspective and what they take into that back room is not easy to understand unless you've been there. Keep in mind, much of what goes on in the courtroom (and the media) is outside of jury knowledge. Don't assume too much.

> A man could come up on your porch with five tough guys standing behind him and say "I'm collecting money for a little fund I'm starting, and me and the boys here would like a little donation. By the way, this is a nice little house you have here and it sure would be a shame if anything happened to it, wouldn't it?" No direct threat, even, if you parse words like Blago, an expression of caring and concern. But the circumstances suggest extortion.

EZ, another poor analogy. There were no hitmen or tough guys in this case out intimidating anyone into anything. Here is a more relevant analogy:

A respected former military man with an unpopular last name is sitting in Starbucks drinking coffee and reading the newspaper. His cell phone rings. He responds to his talkative brother "yeah, yeah, right, good" and ends up facing conspiracy and other trumped-up charges worthy of up to over 100 years in prison.

ZORN REPLY -- Have you read the indictment of Robert Blagojevich? No? Didn't think so.

Tim H. - No, I think an intelligent discussion begins with understanding what the defendant has actually been charged with and what the law requires to prove him guilty. You, like Dave and others, obviously have an emotional connection to this trial either pro-Blago or anti-government. But your comments aren't based in logic, reality, the facts (that were introduced at trial) or the law.

Thank you for chiming in this debate. One might wonder your sudden interest on this blog at prime time of the Blago trial. I've posted on this and other subjects without regard to my popularity. You, on the other hand, pop up and take a popular point of view in a very cavalier kind of way. Sir, your strategy seems to be simply to support the federal government because they have issued an indictment and to dismiss the minority who think the indictment is wrong as emotional morans.

I, for one, am not emotionally attached to the outcome of this case. I do feel that these charges are unfair and unfounded. I also feel that Blagojevich will be convicted on most if not all of the counts. Then again, I thought that in the first trial as well.

> I also feel that Blagojevich will be convicted on most if not all of the counts.

Even a supposed victory for the defendant (two felony convictions--including one wire fraud--out of 20 counts) would carry substantial penalties of up to 40 years in federal prison + fines + forfeiture. Punitively, the feds would accomplish their objective and any additional convictions would be icing on the cake. There is not much to be optimistic about this case with a deck stacked so high against the defendant.

ZORN REPLY -- Would it make you feel better, Dave, to know that in multiple count indictments like this it's unheard of for judges to sentence convicted felons to consecutive sentences? So all this talk about 40 years and more is just inflammatory hogwash.
Nearly every prediction I've heard is that if they get him on all counts this time he'll get a Ryanesque 6.5 minimum, 12 maximum. I'd be stunned if he got more than 8, though Zagel may well be wroth with him for the whoppers he told from the stand, so we'll see.

You are correct in stating that even two convictions out of the 20 counts would mean a multiple year sentence. Although that would mean egg on the face of the federal government, it would still mean defeat for Mr. Blagojevich and his family. But that's another advantage of the feds. Jurors may feel torn and try to compromise by convicting on some counts and deadlocking or acquitting on others. That is not a desirable compromise for the defense.

> So all this talk about 40 years and more is just inflammatory hogwash.

No it's not. I understand there are sentencing guidelines--I'm not claiming the sentence would be 40 years. I'm saying the two additional convictions would increase the sentence let's say five years and each additional conviction would only add a nominal amount to the sentence (compared to the increase of the first two). This is well-founded Eric. It's like the 80/20 rule. I'm not dismissive of the additional time of the additional counts, but the first couple of convictions would be most damaging punitively.

Tim H. - Thanks for clearing this up. I've probably mischaracterized your attachment to this trial as an emotional one. You obviously formed an opinion of the government's motives early on and nothing else really matters. You might see Blago being singled out while others aren't as unfair, but the charges aren't unfounded.

One thing that is clear is that this defendant has not been given a fair trial twice now. It doesn't matter whether you want him convicted or not. Any decent and fair-minded person would at the very least say that Judge Zagel has been anything but impartial. Remember, the constant undermining of Sam Adam, Jr. in the first trial. It was nearly impossible for the defense to gain traction.

The same thing in this trial. The defense has been in the ring with a champion that holds a record of 97-1-2, and the referee intervenes each time the defense lands a clean left jab and gives them a below the belt warning. But the champion is allowed to throw everything including the kitchen sink and hard below the belt punches.

To my surprise, I think Carol Marin wrote an outstanding column on this subject:

Now if only 99.9% of other so called journalists in town would at least attempt to be fair in coverage. I'd like to once again pay homage to WTTW's Elizabeth Brackett for her daily reports on the trial. She reports the activities of the day without slant. This is particularly refreshing since she is absolutely no fan of Blagojevich.

ZORN REPLY -- I don't quite track Marin's point here outside of the point I agree with, which is that Emanuel has some more explaining to do about his request to Blago. What this incident shows or seems to show is that Rahm was ignorant of the law and willing to imply a reciprocal act sometime down the line in return for Blago doing something that would be of personal advantage to Rahm. Blago referred to this offhand as "a favor worth doing," but I don't see it as relevant either way in Blago's trial, therefore Zagel's ruling makes sense to me.

Carol Marin is a great journalist. Elizabeth Brackett has been outstanding on WTTW. I think most journalists covering the trial are objective with few exceptions. "Chicago Tonight" on WTTW has provided great coverage of both trials.

> What this incident shows or seems to show is that Rahm was ignorant of the law

Our good governor himself told Rahm that such an appointment would violate the U.S. Constitution, but Rahm said his legal advisers were looking for procedural alternatives that would allow the appointment. Only then, did the governor say he would be happy to help (if a legal alternative existed).

As far as its relevance to the trial, I am happy at least one additional wiretap "transcript" was entered into evidence by the judge to provide a little more context to these calls. I don't understand why the wiretap was not blasted over the speakers at the trial, so the jury could hear it like other tapes. (Rahm's f-bombs would be turned into ringtones immediately.)

Overall, the call shows that these are normal political discussions, both politicians sought to conduct themselves legally, raw language is not uncommon among big-city politicians, and this whole trial with all of the government's sound and fury is about nothing.

If the prosecution succeeds the second time around, it will prove the old "Kiss" adage that in complex political corruption cases, it is best to keep the government's case simple and stupid. The governments case in the previous prosecution was too difficult for the jurors to grasp!

Let me help you. She, like you, is no fan of Blagojevich. But she, unlike you, apparently is capable of fair analysis. She is just saying that Judge Zagel has not been fair. Fairness is the role of a judge in a courtroom. Got it?

ZORN REPLY -- It's only unfair if it's relevant, and neither you nor Marin has made a convincing case that it's relevant.

So was the Rahm transcript allowed into evidence? Or that too was rejected by the judge?

I don't think EZ is unfair here. He is definitely no fan of the governor. As for the court, Zagel repeatedly told the defense that if the defendant took the stand in his own defense, it would open the doors to more evidence. Then he kept the door shut. The judge has been penalizing the defense over and over for supposedly misleading him in the first trial. It is untrue that the court was mislead and unfair for the judge to penalize the defense. The governor fully expected to take the stand, but the government did not prove its case. The judge knows the defense can and should call an audible if circumstances dictate. And so the defense rested and it proved to be a good decision (except for the one charge).

Not sure if the defense objected to the 17-word "law" as defined by the prosecution in closing arguments, but this is an interesting tidbit from the first trial:
--
"Prosecutors objected for the ninth time about 40 minutes into the closing, prompting the judge to tell Adam that he’s misrepresenting the law."

“The truth is you’ll decide whether I’m right or wrong,” Adam told the jury in response to the ruling.

“The law I give you is the law you must follow,” Zagel told the jurors. “You will not decide the law.” -- From the 'Blagojevich On Trial' Blog

--ZORN REPLIED: "It's only unfair if it's relevant, and neither you nor Marin has made a convincing case that it's relevant."

I think that you may be inconvincible on this subject. I'll give it a try. Zagel allowed prosecutors to segue into the alleged Sandi Jackson conversation between Congressman Jackson and Mr. Blagojevich during their cross examination of Jackson. That line of questioning was supposedly allowed because it could possibly show a pattern or provide context not in favorable light of Blagojevich. It was irrelevant to the case.

The defense wanted to play several tapes that were secretly recorded by the FBI during the same time as the tapes that prosecutors have introduced as evidence to help provide context and give a fuller view of the Governor's mindset. We all know that most of the FBI tapes that the defense want to play are not being allowed. We've learned that there IS a tape of Blagojeich and Mayor Emanuel talking about Emanuel's attempt to get Forrest Claypool appointed to his old congressional seat. Apparently, the Governor is somewhat hesitant but Emanuel promises to "remember" this favor. That isn't relevant to this case directly. But it sure could show a pattern or provide context in favor of the Governor.

ZORN REPLY-- That kind of "context" isn't relevant and I am dubious, with what I know of the law, about the Sandi Jackson-related conversation's relevance, and have said so previously in comments. Marin didn't touch on that, however.

About "Change of Subject."

"Change of Subject" by Chicago Tribune op-ed columnist Eric Zorn contains observations, reports, tips, referrals and tirades, though not necessarily in that order. Links will tend to expire, so seize the day. For an archive of Zorn's latest Tribune columns click here. An explanation of the title of this blog is here. If you have other questions, suggestions or comments, send e-mail to ericzorn at gmail.com.
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Contributing editor Jessica Reynolds is a 2012 graduate of Loyola University Chicago and is the coordinator of the Tribune's editorial board. She can be reached at jreynolds at tribune.com.